The State V. Cornelius Obasi & Ors. (1998)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A. 

This was an appeal against a ruling of Chukwuma Eneh. J., of the then High Court of Enugu State (but now Ebonyi State) holden at Abakaliki in charge No. AB/5c/92 delivered on 30/3/95, wherein he held that the information as originally laid before him was invalid and incompetent as there was no incumbent Attorney-General in Enugu State as at the time the information was originally laid. He therefore struck out the case before him, but ordered the accused persons to be “remanded in prison custody for the D.P.P’s necessary action in the light of this ruling as they are not entitled to be discharged.”

In the original information, the three respondents were charged with murder contrary to section 274(1) Cap. 36 Laws of Anambra State of Nigeria, 1986, as applicable to Enugu State. Each of the accused pleaded “not guilty” and the trial started with the prosecution calling eight witnesses. At the end of the case for prosecution, the learned defence counsel, Mr. Umoke, made a “no case” submission. However, towards the end of his submission, Mr. Umoke tagged to it an objection on the competence of the information. He submitted that as at the time the information was filed on 5/2/92 there was no Attorney-General in Enugu State. He urged the court to take judicial notice of the fact that from 1/2/92 to 18/2/92 there were no civil commission in Enugu State. He referred to a Gazette notification No. 7 of 9/4/92, which showed that the then Attorney-General for Enugu State was appointed on 18/2/92. He then argued that under the 1979 Constitution of the Federation it was the Attorney-General that was empowered to institute and undertake criminal proceedings. According to him these powers were personal to the Attorney-General, and it was he alone that could delegate the powers. He then urged the court to strike out this information and discharge the accused persons.

Realizing the importance of the objection which he called a constitutional matter, the learned trial Judge adjourned the matter and ordered either the Hon. Attorney-General of the State or the D.P.P to come and reply to the objection. The D.P.P., (Mr. Akubuilo) duly appeared on 7/2/95 and replied to the constitutional issue and contended that information filed was competent even though it was filed when there was no Attorney-General in the State. At the end of the arguments, the learned trial Judge came-out with a 19-paged reserved ruling in which he held that an information filed when there was no State’s Attorney-General in office was incompetent and invalid. The case for the prosecution already concluded was a nullity. He therefore struck out the whole case, but curiously did not discharge the accuseds, but ordered them to be remanded in prison custody.

The learned D.P.P. of the State being aggrieved by the above ruling has now appealed to this court on one ground from which the following one issue for determination has been formulated.

“Whether the information preferred and filed in the High Court by a Deputy Director of Public Prosecutions under the department of the Attorney-General when there was no incumbent Attorney-General for Enugu State is invalid and unconstitutional”.

For the accused persons who will hereinafter be referred to as the “respondents” a brief of argument was also filed in which one issue for determination was formulated in almost identical terms as follows:-

“Whether the trial Judge was right in upholding the objection of the counsel for the accused persons that an information filed by the Deputy Director of Public Prosecution when there is no incumbent Attorney-General for the State is incompetent and invalid.”

– Since the two formulations are basically the same, there is in essence only one issue for determination before the court, I shall therefore proceed to resolve this appeal in accordance with the issue formulated by the appellant, namely:-

“Whether the information preferred and filed in the High Court by a Deputy Director of Public Prosecution under the Department of the Attorney-General when there was no incumbent Attorney-General for Enugu State is invalid and unconstitutional.”

Arguing this issue in his brief the learned Assistant Chief Legal Officer (Mr. L.O. Okereke) who prepared the appellant’s brief reproduced the provisions of section 191(1) (a), (b) and (c) as wel1 as section 191(2) of the 1979 Constitution of the Federal Republic of Nigeria, which empowered the Attorney-General of the State to initiate and undertake criminal proceedings in the courts as follows:-

“191.(1) The Attorney-General of a State shall have power –

(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any Law of the House of Assembly;

(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and